dissenting:
I respectfully dissent.
I agree with the majority that the selection of the appropriate statute of limitations rests on the characterization of the essence of the claim, with an effort to effectuate the declared legislative policies. In my view, the majority has failed to characterize the claims, and instead has found “that each count of plaintiffs’ complaint can be interpreted as sounding in tort, contract, or statutory violation,” and the majority then proceed to adopt the statute of limitations containing the longest time period.
This Court in Anderson v. Applebury (1977), 567 P.2d 951 at 955 stated:
“[plaintiffs’ amended complaint . . . seeks recovery of damages and penalties for alleged statutory violations. Applicable to such claims is the two year period of limitations.”
Relying upon that authority, I would hold that United States District Court Judge Battin correctly applied the two year limitation to the securities registration claim.
The histories of the Securities Act of Montana and the Uniform Securities Act suggest that claims brought under those Acts are based on fraud. Relying upon those histories, the declared purposes of the Montana Legislature in enacting the Securities Act, and the allegations of plaintiffs’ complaint, I would characterize the remainder of the claims as sounding in tort, and would apply the two year from discovery time period of limitations as expressed in Section 27-2-203, MCA, and as interpreted in Mobley v. Hall (Mont. 1983), [202 Mont. 227,] 657 P.2d 604, 40 St.Rep. 49.
MR. CHIEF JUSTICE TURNAGE concurs in the dissent of MR. JUSTICE GULBRANDSON.